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Ninth Circuit Panel Rules that Localities Must Allow Option for Carrying Firearms Outside the Home

NRAILA.org

Posted 11/13/2014

Long-suffering California gun owners received some rare good news in February when a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit recognized a right to bear arms outside the home. In its decision in the NRA-backed case of Peruta v. County of San Diego, the panel struck down San Diego County’s “good cause” requirement for a concealed carry license, as county policy failed to recognize general self-defense as sufficient good cause. The ruling, however, has been stayed as parties seek to intervene and petition for a rehearing of the case by a larger contingent of the Ninth Circuit Court of Appeals. In the meantime, droves of Californians intent on exercising their right to self-defense have already made their opinions known by applying for concealed carry licenses.

Like some other jurisdictions in California, San Diego County had operated under a strict may-issue carry policy that left the decision of who may or may not receive a license up to the discretion of the issuing law enforcement official. In San Diego, this discretion led to a policy by the Sheriff’s Office that an applicant had to show “good cause” for obtaining a license. As outlined in the Ninth Circuit’s opinion, this required all applicants to provide “supporting documentation” of their need.  The court went on to explain, “If the applicant [could not] demonstrate ‘circumstances that distinguish [him] from the mainstream,’ then he [would] not qualify for a concealed-carry permit.”

The case originated in 2009, when resident Edward Peruta filed a complaint against San Diego County and Sheriff William D. Gore in the U.S. District Court for the Southern District of California after being denied a concealed carry license. Peruta argued that San Diego’s “good cause” policy violated his Second Amendment right to keep and bear arms. According to Peruta’s attorney, “It was deemed the Plaintiff did not have good cause, because Plaintiff could not document any specific threat of harm, and primary reasons for desiring a license to carry a concealed weapon were due to the fact that he often carried large amounts of cash, valuables and equipment in his motor home, and also because his duties as a news investigator placed him in high crime areas.” Later on, several other plaintiffs joined the case, along with NRA’s California state affiliate, the California Rifle and Pistol Association.

In December 2010, the district court ruled in favor of San Diego. At the time, persons in California could lawfully carry an unloaded handgun with ammunition at the ready. The trial court opined, “to the extent … Defendant’s policy burden[s] conduct falling within the scope of the Second Amendment, if at all, the burden is mitigated by the provisions of [the law] that expressly permit unloaded open carry for immediate self-defense.” The opinion went on to reject the plaintiffs’ call for the use of strict scrutiny in determining whether San Diego was violating the Second Amendment right, opting instead to examine the policy under “intermediate scrutiny.” The court determined that “under intermediate scrutiny, Defendant’s policy need not be perfect, only reasonably related to a ‘significant,’ ‘substantial,’ or ‘important’ governmental interest,” and that the “Defendant’s policy satisfies that standard.”

On October 9, 2011, however, California Governor Jerry Brown signed into law AB 144, which outlawed the open carry of unloaded handguns (the open carry of loaded handguns had been banned years earlier). The legislation left those lacking a concealed carry license without even the prior, largely symbolic option of carrying an unloaded handgun outside the home for self-defense. Thus, enactment of this legislation ironically diminished one of the arguments used by the district court in rejecting the challenge to San Diego’s licensing policy.

The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit, where it was assigned to a three-judge panel consisting of Judges Diarmuid O’Scannlain, Sidney Thomas, and Consuelo Callahan. Oral arguments were heard on December 6, 2012.

NRA filed a friend of the court brief outlining its position. The brief argued that the right to keep and bear arms is a fundamental right that is substantially burdened by San Diego’s “good cause” policy, and therefore the policy must be examined under a “strict scrutiny” test. In making this argument, the brief relied heavily on the Ninth Circuit’s decision in Nordyke v. King, and the Supreme Court’s decisions in District of Columbia v. Heller, and McDonald v. City of Chicago. The brief concluded its argument by stating: “The County interprets ‘good cause’ as meaning a particularly good cause that distinguishes an applicant from the average citizen. The fundamental problem with that interpretation is that every individual has a Second Amendment right and corresponding right to self-defense. There is no need for an individual to demonstrate an especially good reason that he should enjoy a constitutional right guaranteed by our founding document.”

On February 13, 2014, the Ninth Circuit issued its decision in a 77-page opinion written by Judge O’Scannlain. First, O’Scannlain examined the question of whether the behavior restricted by San Diego’s policy falls within the scope of the right protected by the Second Amendment. The Judge pointed out that the Second Amendment protects a “right not only to ‘keep’ arms but also to ‘bear’ them.” After examining several sources, along with the Heller and McDonald decisions, O’Scannlain concluded that the evidence “suggest[s] that the Second Amendment secures a right to carry a firearm in some fashion outside the home.”

Next the opinion delved into the matter of what the term “bear arms” encompassed in the founding era. On this point, O’Scannlain cited founding-era scholar St. George Tucker: “The right to armed self-defense, Tucker insisted, is the ‘first law of nature,’ and any law ‘prohibiting any person from bearing arms’ crossed the constitutional line.”

The opinion then went on to explore legal precedent for the correct interpretation of the right to “bear arms.” O’Scannlain cited the 1822 Kentucky case Bliss v. Commonwealth, in which the Kentucky Supreme Court held that the state’s right to bear arms amendment invalidated a ban on “wearing concealed arms.” The opinion then cited similar cases, including the 1833 Tennessee case of Simpson v. State, the 1840 Alabama case of State v. Reid, and the 1846 Georgia case of Nunn v. State, all of which offer evidence that the right to “bear arms” was understood to extend beyond the home.

O’Scannlain’s analysis then moved to the post-civil war period. Here the judge examined Stephen P. Halbrook’s scholarship on the Fourteenth Amendment and the post-slavery experience as it pertains to the right to keep and bear arms. Using a passage from the Heller decision, O’Scannlain determined that “[j]ust as it was ‘plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense,’… it appears that the right was also understood to encompass carrying weapons in public in case of confrontation.” After marshalling all of his historic evidence, O’Scannlain concluded that “the carrying of an operable handgun outside the home for the lawful purpose of self-defense, though subject to traditional restrictions, constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.”

The opinion then analyzed whether San Diego’s policy is an infringement of the right to bear arms. O’Scannlain notably rejected the method of applying a certain level of scrutiny to an infringement on the Second Amendment right that other courts have used in similar circumstances. Instead, he noted that since there is no option in California for unlicensed open carry, the right to carry outside the home is effectively eliminated by San Diego’s policy, under which licenses are routinely denied. Thus, O’Scannlain found that a scrutiny test would be inappropriate, in that “the Second Amendment does require that the states permit some form of carry for self-defense outside the home.”  In summary, “San Diego’s ‘good cause’ permitting requirement impermissibly infringes on the Second Amendment right to bear arms for lawful self-defense.”

Despite O’Scannlain’s strong articulation of the right to carry outside the home, California gun owners and others under the Ninth Circuit’s jurisdiction are not out of the woods yet. Following the ruling, gun control proponents petitioned to have the case reheard by a “limited en banc” panel of 11 judges. The Ninth Circuit has yet to determine whether or not it will grant this request.  In the meantime, the panel’s February 13 ruling has been stayed until a final disposition of the case has been made. This means jurisdictions that were operating under a “may issue” license framework may continue to do so in the interim. Nevertheless, a number of counties – including Orange, Ventura, and San Joaquin – have already changed their polices to recognize a desire for self-defense as a sufficient cause for the issuance of a concealed carry license to an otherwise qualified applicant.

In addition to being an important milestone for Golden State residents, the ruling could affect policy in other states. Another Ninth Circuit ruling in the case of Baker v. Kealoha held that a district court in Hawaii erred when it held that the state’s restrictions on carrying firearms outside the home did not implicate protected Second Amendment activity.  Further proceedings on that case, however, have been deferred pending resolution of the post-opinion matters in Peruta. Meanwhile, the U.S. territory of Guam passed legislation in response to Peruta that changed its concealed carry licensing regime from “may-issue” to “shall-issue.”

In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml]

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